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GUJARAT HIGH COURT
Rajesh H. Shukla, J.
Poonambhai Shanabhai Valand
Decd. and Ors. —Appellants
versus
Hasmukhbhai Bachubhai Parsana —Respondent
Second Appeal No.193 of 2016 with Civil Application No.7673 of 2016 in Second Appeal No.193 of 2016
Decided on 31.1.2017
Held: As could be seen from the background of facts and the rival submissions, the first question which is required to be considered is whether both the courts below can be said to have committed any error while passing the order under Order 7, Rule 11 for rejection of the plaint on the ground of limitation.
The provisions of Order 7, Rule 11 (d) of CPC provide, “Where the suit appears from the statement in the plaint to be barred by any law”
Thus, when prima facie the suit which has been filed for cancellation of the registered document/sale deed executed in the year 2001 is filed in the year 2010 the court is obliged to consider the aspect of limitation. In fact, the Hon’ble Apex Court has made the observation that it is obligatory for the courts to consider such aspects of limitation while entertaining such application. Therefore, when the suit is found to be hopelessly time-barred the submissions made by learned counsel Shri Patel that the issue of limitation is a mixed question of law and fact and therefore it ought to have allowed the parties to lead evidence is misconceived and it cannot be readily accepted.
Another facet of the submission is with regard to the cause of action which is stated to arise from the date of knowledge contending that the appellants original plaintiffs had no knowledge and it came to their notice only when the revenue proceedings were brought to their notice. As discussed above, even if it is accepted for the sake of argument it is evident that the copies of entries mutated in the revenue record has been obtained in May 2007 by the appellants original plaintiffs and therefore the suit could have been filed within a period of 3 years as provided in Article 59 of the Limitation Act. Admittedly, the suit is beyond the period of 3 years. Moreover, as observed in the judgment of the Hon’ble Apex Court as well as the judgment of this court in the case of Becharbhai Zaverbhai Patel & ors. (supra), the registration of document is the deemed notice for the purpose of knowledge.
Therefore, on analysis of the aforesaid judgments suggesting guidelines, a few aspects have been clarified. While exercising power under Order 7, Rule 11 it has been emphasised that the defence in the written statement is not relevant. In other words, it has been emphasised that while considering exercise of discretion under Order 7, Rule 11, the court has to consider only the averments in the plaint and it has a reference to the cause of action which is again a bundle of facts. Therefore, in order to exercise discretion under Order 7, Rule 11 , the court has to consider only the averments in the plaint. At the same time, the courts are obliged to consider and read in a meaningful manner the averments in the plaint particularly the cause of action and to consider whether it is hit by any statutory provision including the limitation. As referred to hereinabove, by skilful drafting or misleading facts the party may not be allowed to stretch the limitation so as to create an impression that the suit is within the limitation. It is at that stage the courts are obliged to consider the averments closely so that the suit which is filed as an abuse of the process of the court as a bogus irresponsible litigation is not entertained. A useful reference can also be made to the observations made in a judgment of the Hon’ble Apex Curt reported in (2005) 5 SCC 548 in the case of N.V. Srinivasa Murthy and ors. v. Mariyamma (dead) by proposed LRs and ors.
The Hon’ble Apex Court in catena of judicial pronouncements has laid down broad guidelines expressing a word of caution while exercising discretion under section 100 of CPC in second appeal that normally the concurrent finding of facts may not be disturbed unless substantial question of law is involved. Therefore, having regard to the aforesaid broad guidelines, the present second appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. (Paras 9 to 11, 15 and 18)
Result: Appeal dismissed.
Rajesh H. Shukla, J.—The present second appeal is filed by the appellants-original plaintiffs challenging the impugned judgment and order by the Addl. District Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Appeal No. 17/2014 dated 22.4.2016 confirming the judgment and order below Exh. 17 in Special Civil Suit No. 514/2010 by the Sr. Civil Judge, Ahmedabd (Rural) dated 28.12.2014 under Order 7, Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint on the ground of limitation posing the following substantial questions of law :
(i) Whether the plaintiffs have proved their case independently by showing that the plaint of the plaintiffs discloses the cause of action?
(ii) Whether the plaint of the plaintiffs is time barred and whether it falls within the period of limitation?
(iii) Whether is it possible for the trial court to decide the issue of concoction of power-of-attorney without adjudicating the same?
2. Heard learned counsel Shri Vijay Patel appearing for the appellants and learned advocate Ms. Trusha Patel for respondent No. 1.
3. Learned counsel Shri Patel referred to the background of facts and submitted that both the courts below have committed an error in passing the order under Order 7, Rule 11 rejecting the plaint on the ground of limitation. He emphasised that the issue of limitation is a mixed question of law and facts and therefore it would depend upon the evidence and the appellants original plaintiffs should have been allowed an opportunity to lead the evidence and therefore Order 7, Rule 11 of CPC would not be attracted. He has referred to the background of facts as well as the judgments by both the courts below and submitted that as could be seen from the judgment and order of the first appellate court, the appellants original plaintiffs had no knowledge and therefore as explained in the plaint while referring to the cause of action the cause of action arose when the power-of-attorney was misused by creating the documents which came to the notice of the appellants original plaintiffs at a later stage in the year 2007.
4. Learned counsel Shri Patel has also referred to and relied upon the judgment of the Hon’ble Apex Court reported in (2005) 7 SCC 510 in the case of Popat and Kotecha Property v. State Bank of India Staff Association and submitted that the date of knowledge would be relevant. He therefore submitted that the object of Order 7, Rule 11is to keep out of court irresponsible law suits but it should not be a ground to deprive the party to challenge such documents which are executed behind the back. He has also referred to and relied upon the judgment of the Hon’ble Apex Court reported in AIR 2015 SC 2485 : (2015) 8 SCC 331 in the case of P.V. Guru Raj Reddy rep. by Gpa Laxmi Narayan Reddy v. P. Neeradha Reddy & ors. He also submitted that the date of knowledge would be relevant and in the facts of the case as the other co-owners have filed the complaint and when it came to the notice in the revenue proceedings the appellants original plaintiffs filed the suit. He therefore submitted that the order passed under Order 7, Rule 11 is erroneous and it is a substantial question of law. Learned counsel Shri Patel also tried to submit that the law of limitation would be attracted which could be considered on the basis of appreciation of the material and evidence.
5. Per contra, learned advocate Ms. Trusha Patel referred to the documents and the paper-book supplied by her and submitted that the document/sale deed which is executed in the year 2001 is sought to be challenged by way of the aforesaid Special Civil Suit No. 514/2010 in the year 2010. She submitted that the suit is filed on 29.7.2010 for challenging the said sale deed executed on 10th September 2001. She also pointedly referred to the papers and submitted that the date of registration of the document would be the date for the purpose of deemed knowledge of such document as provided in section 3 of the
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